Moy & Pao (No. 4)

In *Moy & Pao (No. 4)*, Altobelli J of the Family Court of Australia considered an application by the father for indemnity costs against the maternal grandparents. The grandparents had filed an application to review previous orders concerning their time with their seven-year-old grandson, X, but subsequently discontinued that application. The father sought to recover his costs on an indemnity basis, arguing the grandparents' application lacked merit, particularly in light of expert evidence.

The primary legal issue before the Court was whether to grant the father's application for indemnity costs, or any costs order at all, given the discontinuance of the grandparents' application. This required the Court to consider the factors outlined in section 117(2A) of the *Family Law Act 1975* (Cth), which govern the award of costs in family law proceedings.

Altobelli J reasoned that while the grandparents were wholly unsuccessful in their application, the decision to award indemnity costs was discretionary and required exceptional circumstances. The Court noted that the grandparents' application, at least prior to the release of certain expert evidence, was not entirely without merit. Furthermore, the Court considered the financial circumstances of the parties, noting that none were in a strong financial position and the grandparents were almost impecunious. Crucially, the Court expressed concern that making any costs order would exacerbate the existing conflict between the father and the maternal grandparents, which would be detrimental to the child, X, who was already dealing with the loss of his mother and ongoing parental conflict.

Applying the principles from cases such as *Hillier & Olly* and *Ventura & Ventura*, the Court concluded that the potential negative impact on the child's wellbeing outweighed the usual considerations for awarding costs. Consequently, the Court dismissed the father's application for costs, ordering that each party was to bear their own costs.